UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: September 7, 1982.
ROLLIN HAFFER, IND. AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; PATRICIA M. HILFERTY, IND. AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; GLADYS BOONE, IND. AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; SUZANNE WEKSEL, IND. AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; ANASTASIA MCHUGH, IND. AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; TONYA DARBY, IND. AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; KIMBERLY GRAY, IND. AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; AND BETH ENDERSON, IND. AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; LYNN BARKER, IND. AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; NANCY J. DULL, IND. AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; AND LOIS FITZGERALD, IND. AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED
TEMPLE UNIVERSITY OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION; MARVIN WACHMAN, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF TEMPLE UNIVERSITY; JAMES D. LOGAN, IN HIS OFFICIAL CAPACITY AS VICE PRESIDENT AND TREASURER OF TEMPLE UNIVERSITY; JOHN L. RUMPF, IN HIS OFFICIAL CAPACITY AS VICE PRESIDENT AND DEAN OF FACULTIES OF TEMPLE UNIVERSITY; JOSEPH B. OXENDINE, IN HIS OFFICIAL CAPACITY AS DEAN OF THE COLLEGE OF HEALTH, PHYSICAL EDUCATION, RECREATION AND DANCE OF TEMPLE UNIVERSITY; KAYE E. HART, IN HER OFFICIAL CAPACITY AS DIRECTOR OF WOMEN'S INTERCOLLEGIATE ATHLETICS OF TEMPLE UNIVERSITY; ERNEST C. CASALE, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF MEN'S INTERCOLLEGIATE ATHLETICS OF TEMPLE UNIVERSITY; RICHARD THORNBURGH, IN IS OFFICIAL CAPACITY AS GOVERNOR OF THE COMMONWEALTH OF PENNSYLVANIA; ROBERT SCANLON, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE PENNSYLVANIA DEPARTMENT OF EDUCATION OF THE COMMONWEALTH OF PENNSYLVANIA; AND AL BENEDICT, IN HIS OFFICIAL CAPACITY AS AUDITOR GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA; TEMPLE UNIVERSITY, DR. MARVIN WACHMAN, DR. JOHN RUMPF, MR. JAMES LOGAN, DR. DONALD HILSENDAGER, MR. ERNEST CASALE AND DR. E. KAYE HART. APPELLANTS
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Adams and Higginbotham, Circuit Judges and Teitelbaum,*fn* District Judge.
Author: Per Curiam
Opinion OF THE COURT
Eight women undergraduates at Temple University brought this class action, charging that the University discriminates on the basis of sex in its intercollegiate athletic program.*fn1 The plaintiffs contend that Temple's allegedly discriminatory policies violate section 901(a) of Title IX of the Education Amendments of 1972, which provides: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."*fn2 20 U.S.C. § 1681(a).*fn3 Temple denied that it discriminates against women in intercollegiate athletics and moved for summary judgment, arguing that Title IX applies only to an education program or an activity directly in receipt of federal funds and that the University's athletic program receives no such earmarked federal monies.*fn4
After several affidavits had been submitted and a number of depositions had been taken in order to clarify the nature of federal funding currently received by Temple,*fn5 Chief Judge Lord denied the motion for summary judgment. The district court held that: (1) Title IX's coverage is not limited to educational programs and activities that receive earmarked federal dollars, but also includes any program that indirectly benefits from the receipt of federal funds; because Temple's athletic program indirectly benefits from the large amounts of federal financial assistance furnished to the University in the forms of grants and contracts, Title IX is applicable to Temple's athletic program; and (2) even if Title IX is construed to require direct federal financing, the Temple athletic program receives and benefits from several hundred thousand dollars worth of annual federal aid, and therefore is covered under Title IX. Haffer v. Temple University, 524 F. Supp. 531 (E.D. Pa. 1981).
Temple requested and received certification pursuant to 28 U.S.C. § 1292(b) of the following question:
Whether the phrase "education program or activity receiving Federal financial assistance" as used in Section 901 of the Education Amendments of 1972 (20 U.S.C. § 1681(a)) includes programs or activities, such as Temple University's intercollegiate athletic program, which do not themselves receive earmarked Federal financial assistance, if such programs or activities benefit from the receipt of Federal financial assistance by other parts of the University and/or by students enrolled at the University.
We answer this question in the affirmative.
After this matter was heard at oral argument, another panel of this Court issued a decision in Grove City College v. Bell, 687 F.2d 684 (3d Cir. 1982). The issue in Grove City was whether a private college that receives no direct funds from the federal government, but whose students receive federal grants under the Basic Educational Opportunity Grants program (BEOG), is covered under Title IX. After analyzing the statute, its legislative history, and the relevant caselaw, the Grove City panel concluded that Title IX's prohibition on gender discrimination in education is indeed triggered when students make use of BEOG assistance.
Whatever the views of the individual judges on this panel may be, the result reached in Grove City and the reasoning employed by the Court there resolve the present appeal.*fn6 The Grove City panel initially determined that the "all inclusive terminology" of Title IX "encompass[es] all forms of federal aid to education, direct or indirect." 687 F.2d at 691. The Court's holding in Grove City that the receipt of BEOG monies by students is sufficient to subject a college to Title IX coverage, slip op. at , is binding in the present controversy, for the record establishes that many Temple students -- and many Temple athletes -- participate in the BEOG program.
Further, Grove City rejected the assertion that the program-specific nature of Title IX, see North Haven Board of Education v. Bell, 456 U.S. 512, 72 L. Ed. 2d 299, 102 S. Ct. 1912, 50 U.S.L.W. 4501, 4507 (U.S. 1982), somehow limits the authority of the Department of Education to regulate only in those situations in which direct federal monies to a specific program can be pinpointed. According to Grove City, "the legislators [who enacted Title IX] did not contemplate that separate, discrete, and distinct components or functions of an integrated educational institution would be regarded as the individual program, to which sections 901 . . . refer." 687 F.2d at 697. In arriving at this conclusion, the Grove City majority explicitly relied upon the reasoning employed by the district court in Haffer, the decision appealed from here. See 687 F.2d at 700.*fn7 "Where the federal government furnishes indirect or non-earmarked aid to an institution," the Grove City Court declared, "it is apparent to us that the institution itself must be the 'program '" referred to in Title IX. 687 F.2d at 700. After Grove City, then, it is clear that the only result we can reach in this appeal is to affirm: if Temple University as a whole is to be considered the "program or activity" for Title IX purposes, it follows that because the University as a whole receives federal monies, its intercollegiate athletic department is governed by Title IX.*fn8 In sum, the theory announced by the district court in this dispute -- that the Temple athletic department "receives" federal financial assistance because federal money sent to the University itself frees nonfederal funds which can be allocated to intercollegiate athletics -- is consonant with the subsequent decision of this Court in Grove City.
The judgment of the district court will be affirmed and the matter returned to that court for further proceedings.*fn9